Three media outlets are challenging a decision by the B.C. Supreme Court's top judge to deny the public details about so-called alternative measures that resulted in the dismissal of a sexual assault charge against the mayor of Port Moody, B.C.
CBC, CTV and Global filed an application in B.C.'s Court of Appeal Thursday seeking to overturn a decision by Chief Justice Christopher Hinkson rejecting a bid for specifics about the measures Robert Vagramov was required to complete in order for the Crown to agree to bring criminal proceedings against him to a halt.
In a 30-page document filed with the province's top court, media lawyer Daniel Burnett argues that Hinkson failed to consider the open court principle, central to the Canadian justice system, which requires anyone seeking a ban on publication to prove it's necessary to prevent harm.
Vagramov was charged with sexual assault in 2019 in relation to an incident his lawyer later characterized as an "awkward date."
Some transparency 'required'
The charge was stayed months later through a process designed to give offenders with no history of violence or sexual offences the opportunity to take responsibility for their actions while avoiding a criminal record and civil liability.
At the time the charge was stayed, the Crown told the court only that the mayor had "successfully completed" an alternative measures program. The specifics were not disclosed.
CBC, CTV and Global filed an application in B.C. Supreme Court asking Hinkson to OK the release by the Crown and B.C. Corrections of documents that confirmed Vagramov's eligibility for alternative measures, the specifics of the measures he was asked to complete and confirmation of the fact that he completed them.
In his April ruling, the chief justice said the documents the media were seeking were never introduced in open court, and so the open court principle did not apply.
In the appeal, Burnett argues that while the records themselves may not have come before a judge, they're "intertwined with the administration of justice."
"A criminal charge before the court was stayed in court based upon a criteria set out in the Code. An officer of the court, Crown Counsel, entered the stay in court based upon the criteria," the appeal application reads.
"Some transparency regarding the measures completed is required if the fairness of the alternative measures system is to be understood and considered. The public as well as those charged should not be expected to simply trust that the measures are appropriate, fair, or applied evenly."
A 'chilling' effect
The case shines a light on a program designed to rid the court of minor cases, save money for taxpayers and ensure that Canadians who make a single, serious misstep don't necessarily have to carry the burden of a life-altering criminal record.
In rejecting the media's bid for disclosure, Hinkson reached back to a 1994 parliamentary discussion that saw the Bloc Québécois justice critic say that "a private, administrative route" was necessary to ensure that suspects who agreed to co-operate could be sure that they wouldn't later find themselves publicly shamed.
Hinkson concluded that releasing Vagramov's alternative measures details could lead to manipulation by accused people looking to game the system.
He also said the disclosure could have a "chilling" effect on accused people who agree to alternative measures in the belief that it will keep their names out of the headlines.
'An error upon an error'
In the appeal, CBC, CTV and Global claim Hinkson came to those conclusions based on "pure speculation" without reviewing the documents themselves.
"It was an error upon an error," Burnett writes.
The media claim they weren't seeking detailed psychological reports, and that Vagramov himself has spoken publicly about sending an apology letter to the woman who accused him.
"It is equally likely that better knowledge of the program will increase the number of individuals who wish to participate in it," Burnett writes.
"Appreciating that every case has different circumstances, there can be no valid justification for keeping secrecy over what kinds of alternative measures it takes to avoid a prosecution, and what Mr. Vagramov did to earn a stay."
Vagramov was elected mayor in October 2018 when he was 28.
He took a leave of absence after the charge was sworn but created a rift at city council when he returned to work in September 2019, ahead of the staying of the charge.
Vagramov later said was "deeply regretful" for the tension his criminal case brought upon council and the community.
The mayor's lawyer did not return a request for comment Thursday.